Citation Nr: 0310935
Decision Date: 06/02/03 Archive Date: 06/10/03
DOCKET NO. 02-08 515 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to an initial rating in excess of 30 percent
for post-traumatic stress disorder (PTSD).
2. Entitlement to an initial rating in excess of 20 percent
for diabetes mellitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. J. Janec, Counsel
INTRODUCTION
The veteran had active military service from August 1969 to
August 1971.
This matter comes before the Board of Veterans' Appeals
(Board) from a September 2001 rating decision of the
Indianapolis, Indiana, Regional Office (RO) of the Department
of Veterans Affairs (VA) which granted service connection for
PTSD and assigned a 30 percent rating effective July 5, 2000;
and granted service connection for diabetes mellitus and
assigned a 20 percent rating effective July 9, 2001.
The veteran was scheduled to testify at a personal hearing
before a decision review officer at the RO in September 2002.
However, he failed to report.
REMAND
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)).
The VCAA includes an enhanced duty on the part of VA to
notify a claimant of the information and evidence necessary
to substantiate a claim for VA benefits and which evidence,
if any, the claimant is expected to obtain and submit, and
which evidence will be retrieved by VA. See 38 U.S.C.A. §
5103(a) and (b) (West 2002). Also see Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). VCAA is applicable
to all claims filed on or after the date of enactment,
November 9, 2000, or filed before the date of enactment and
not yet final as of that date. 38 U.S.C.A. 5107. See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
This matter arises from an appeal filed by the veteran to a
rating decision dated in September 2001. However, the record
shows that the RO has not referenced or discussed the VCAA in
adjudicating the veteran's claims for increased initial
ratings for PTSD and diabetes mellitus. In particular, the
RO must provide notice of the VCAA to the veteran and his
representative, including the division of responsibilities
between VA and the claimant in obtaining evidence pertaining
to these claims. See 38 U.S.C.A. § 5103(a) and (b) (West
2002).
Accordingly, this case is REMANDED to the RO for the
following development:
1. The RO should take appropriate action
in this case to comply with the notice
and duty to assist provisions of 38
U.S.C.A. § 5103(a) and (b), to include
with regard to the one-year period for
receipt of additional evidence.
2. Upon completion of the above, the RO
must readjudicate the issues on appeal
and consider all evidence received since
issuance of the most recent Statement of
the Case.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action until
otherwise notified; however, he has the right to submit
additional evidence and argument on the matters the Board has
remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369
(1999).
_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).